As COVID-19 cases rise in the United States, companies say they fear a California court ruling has increased the likelihood that companies will be sued for infections, even by people who are neither employees or customers.
The Dec. 21 decision authorized a wrongful death lawsuit against See’s Candies Inc., owned by Berkshire Hathaway, by the family of Arturo Ek of Los Angeles who died in April 2020 at age 72 of COVID-19.
See employed his wife, Matilde Ek, who said she was infected with the coronavirus while working inches from her sick colleagues, then her husband caught it at home.
The ruling is the first by an appeals court to allow a new ‘take-home’ COVID-19 lawsuit, which seeks damages from a company over allegations of breaching safety protocols and tripping a chain. of infections beyond company premises.
See’s, who did not respond to a request for comment, may appeal to the California Supreme Court.
The See’s ruling is only binding in California, but it may offer guidance to judges in other states, legal experts said.
Family and friends
Business groups have warned in court documents filed ahead of the See’s decision that such a decision could lead to legal action from family and friends of an infected employee, and anyone infected by this circle. of people.
The groups called it an “endless chain of accountability”.
To thwart COVID-19-related lawsuits, including home-based cases, business interests have persuaded at least 30 states to pass laws that make it difficult to bring them, often by requiring plaintiffs to be grossly negligent. .
California was not one of those states.
“The appeals court ruling could open California employers to frivolous COVID-related lawsuits that will further undermine the ability of small businesses in particular to recover,” said Kyla Christoffersen Powell, president of the Civil Justice Association of California. , a group of companies.
Hours after the ruling, a California construction worker and his wife cited the ruling in a US appeals court in San Francisco. The couple are seeking to revive a similar lawsuit against Victory Woodworks Inc.
There have been at least 23 take-out COVID-19 trials across the United States, all of which are in the early stages. The defendants include Amazon.com Inc., Walmart Inc., Royal Caribbean Cruises Ltd., Conagra Brands Inc. and Pilgrim’s Pride, a subsidiary of meat producer JBS SA.
Lawsuits typically allege negligence over COVID-19 protocols: Employees were crammed into work vans; symptomatic workers were kept in company dormitories; or infected people were not screened before entering a construction site. They are seeking damages on behalf of the children and spouses of employees who ended up on ventilators or even died of the disease.
At least six of the lawsuits have been dismissed, including against Southwest Airlines Co., and six, including two against McDonald’s Corp., appear to have reached a private settlement, said Stephen Jones, general counsel for Praedicat Inc., a company that assesses risks for insurers.
The cases are not limited to employees.
Royal Caribbean’s Celebrity cruise line has been sued in federal court in Miami over an outbreak of COVID-19 on a ship, infecting two passengers who brought the disease home to their children. Both parties are scheduled for mediation.
“Until you get a verdict from the jury, we won’t know one way or another if there will be an explosion of cases,” Jones said.
The See’s ruling helped resolve an initial question that hung over take-out COVID-19 cases finding that employers are not immune from workers’ compensation lawsuits. The system provides prompt payments without the need to prove fault for workers’ compensation and, in turn, it blocks lawsuits.
The California Court of Appeals, Second Appellate District, said Arturo Ek’s death hinged on his wife as the carrier of the virus. His death was not, as See had argued, dependent on his illness.
The Ek family still has to convince a judge that See had a duty to the employees’ family and acquaintances.
Plaintiffs failed to establish this in the cases that were dismissed against Southwest Airlines, an Illinois meat processor, and a Maryland hospital.
To ultimately prevail, plaintiffs must also demonstrate that there is a connection between the workplace and the takeaway COVID-19 case.
“You should have a situation where an employee has come to work and neither the employee nor anyone else in the family/household has gone anywhere else,” said Amberly Morgan, an attorney at Fisher Phillips, which defends employers. .
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